Until You Are Dead (updated)

by Julian Sher

  “Yes sir,” the boy replied.

  Forty years later, one of the boys who was on that bridge cringes as he recalls the constraints imposed by courtroom examinations. “We were joking and laughing,” Bryan Glover recalls. “But lawyers don’t ask you that. They just ask for exact words. You feel like you’re telling about five per cent. [It’s] out of context, but no one will give you a chance to tell the other ninety-five per cent.”

  Indeed, sitting in the witness box was a terrifying experience for most of the children. “It is very scary testifying in court when you’re twelve,” remembers Richard Gellatly. “They asked me things like ‘Is this his bike?’ and to me, a twelve-year-old kid, I’d say, ‘Sure, that’s his bike.’ Then the lawyers come at you over and over and ask, ‘How can you be sure it’s his bike?’ You can do that to an adult, but when you start doing that to kids—help! They just had me shaking in my boots. Those lawyers are mean, scary people when you’re a kid.”

  As they waited their turn to testify, the children passed their time reading comics in a room at the courthouse. In a separate holding room, Steve sat with a guard when the court was not in session. He gazed out the window and counted cars going around the town square. “He was so cool,” one of the officers guarding the fourteen-year-old later told a friend. “If he did it, he was the coolest kid I’ve ever run across.”

  Four days into the trial, many of Steve’s friends shared his lackadaisical optimism. “Most of us kids were sure that Steve was going to go to trial and then be right home,” says Catherine O’Dell. She remembers arguing with a friend’s father who attended the trial regularly. He predicted things would turn out badly for Steve.

  “I thought, ‘He’s nuts.’ I just thought he was totally wrong,” Catherine remembers. “Everything will be over soon and everything will go back to normal,” she told her friend’s father.

  “They have to pin it on somebody so people can sleep at night,” the man said with adult cynicism. “And they’re not going to let him go.”

  17

  DUEL WITH THE DOCTORS

  After a short rest on Sunday, the jurors returned to their seats on Monday, September 21. The next five days would be largely dominated by exhaustive medical testimony. But no sooner was the first doctor introduced than the judge promptly asked the jury to retire. At issue was the role Dr. John Addison played on the long night of Steve’s interrogation and arrest on Friday, June 12.

  Defence counsel Frank Donnelly argued that Steve’s father would never have agreed to the medical examination of his son if not for the fact his friend, Sgt. Charles Anderson, the senior Goderich OPP officer, had encouraged him to do so.

  Donnelly insisted, under law, any subsequent findings the doctor made on Steve’s body or statements he took from the boy must be ruled inadmissible. Justice Ferguson decided he at least had to hear what Addison had to say before making up his mind, so the affable doctor stepped up to the stand, but not in the presence of the jury.

  The question at hand was: did Addison act as doctor or detective?

  The judge turned to the doctor in the witness box, eager to find out under what circumstances the examination took place. “Did you give any warning to the boy before you asked him any questions?” the judge asked the doctor. “Did you say to him: now what you say to me may be used in evidence?”

  “Your Honour, I was examining him as a family practitioner.”

  “I don’t care about your practice,” the judge retorted.

  “No, I didn’t tell him it would be used against him one way or the other.”

  Addison then recounted his questioning of the boy. “Do you think there is a possibility you may have taken her into the bush?” he asked Steve. “If you have done this thing, I want you to tell me. It is much better you tell us the truth now and get it off your chest.”

  Judge Ferguson quickly became concerned with what sounded suspiciously more like a police interrogation than a medical query. “Who asked you to examine the youngster along that line? Anybody? It doesn’t sound like an examination a doctor would take part in.”

  Addison replied that he suggested to Inspector Graham that he try to see if he could “get a story from the boy.”

  Later, the doctor tried to explain his actions. “After all, I was called out just to make a physical examination—”

  “If you had stopped at that I would have a lot less trouble than I have, but you didn’t, you see,” the judge interrupted. “You took on the role of the detective before you were finished.”

  Addison admitted his account of his talk with Steven was not so much a faithful transcription as an impression of tone—as he put it, not the “exact words, but … the attitude I took.” Steven’s answers were not necessarily precise quotes but rather reflections of the boy’s manner. For example, on the central issue of what, if anything, Steve did to Lynne, the doctor conceded he was a bit fuzzy about how he phrased his question.

  “I am not positive [about] the word I used: ‘molested her’ or ‘did this to her,’ and Steve said: ‘I might have’ or ‘I could have, but I can’t remember.’ It was the tone—the reason I can remember that is the tone with which he answered me.

  “There was no life or fire to his reply,” Addison concluded. “He didn’t deny it at all. In my opinion, he didn’t deny with enough enthusiasm.”

  Judge Ferguson was not impressed. “You sort of mixed up your evidence,” he said at one point. By Tuesday, the judge was ready to rule.

  “He wasn’t there as the doctor looking after his patient in any possible sense of the word,” he decided. “He didn’t go in that role at all. He went there to make an examination on behalf of the police.” The judge was also critical of the role inadvertently played by Dan Truscott. “Did anybody tell the father that the boy didn’t have to answer? Nobody told the father that. Nobody told the boy that.…The boy could very well have been misled by the presence of his father.”

  But Ferguson reserved his harshest words for the police, chastising the OPP for not warning Steve he was, in effect, under arrest. “Every possible sort of inducement, everything to my mind contrary to the rule of the taking of statements took place between Dr. Addison and the boy. Under no circumstances would any court admit that statement in evidence against this accused boy, and I will exclude it.”

  Still, the judge ruled that the doctor’s views on his physical examination of Steven and the boy’s “demeanour” would be allowed. It was a door wide enough for the prosecution to get in as much compromising detail as possible.

  With the jurors again settled in their seats, the local country doctor several of them knew and admired began to describe the scratches he found on the body of Steven Truscott the night he was in police custody.

  “They certainly weren’t recent scratches,” Addison began. “They would probably be three or four days [old].”

  Prosecutor Hays wanted more. “Can you be any more precise than that?” he asked.

  “I wouldn’t like to be more precise,” Addison said with caution. “There is quite a difference on how little scratches will heal up. In a boy like Steven … I wouldn’t like to put a definite time as to when he received those scratches.” Hays did not have to worry; he would soon produce another doctor who would be much more willing to date scratches with remarkable precision.

  Hays then moved Addison on to the more salacious topic of the sores on Steven’s penis. The doctor informed the jurors he had never seen a penis as sore as Steve’s, except for that of a man who had the misfortune of having a cow step on his genitals.

  “Is it your opinion that these abrasions could have been caused by a boy this size and age trying to make entry into a girl age twelve?” the Crown attorney asked.

  “Yes sir,” the doctor said. “He is sexually developed, the same as any man, and trying to make entry could cause the sores on his penis.”

  Hays wrapped up his examination by enquiring about Steve’s demeanour. “The boy appeared rather apathetic and di
sinterested,” Addison reported. “Not too alarmed about the whole situation.”

  As soon as he rose for his cross-examination, Frank Donnelly pursued the issue of Steve’s attitude during the long night of his arrest. Addison quickly agreed the boy was “quite calm,” co-operative and not tense or nervous. Without explicitly saying so, Donnelly was trying to suggest that what some saw as apathy could very well have been a clear conscience and an absence of guilt.

  Steven’s lawyer then raised the delicate issue of the penis sores. Could masturbation have caused them, he asked.

  “My opinion is no,” came Addison’s quick retort.

  “Has that always been your opinion?” Donnelly pursued. “I suggest when you gave evidence here at the preliminary hearing, you indicated that masturbation could have been the cause?”

  “At the preliminary hearing you indicated that might be a cause,” the doctor insisted.

  In fact, at the July hearing, the doctor, under intense grilling from Donnelly, had conceded there was a “very remote chance of masturbation” causing the sores. “Rubbing is one way,” he said then.

  Donnelly concluded his grilling of the family doctor by getting him to confirm that the scratches all over Steve’s body were ordinary.

  “There were no severe scratches or deep scratches,” Addison said.

  “Were they all very trivial, Doctor?” Donnelly asked.

  “Well, that depends on your interpretation of trivial,” the doctor responded. “I don’t understand the question.”

  Donnelly again had to remind the doctor of his words at the preliminary hearing, when he himself had characterized the scratches as “all trivial.”

  “Just what you would expect in an active boy,” Donnelly said.

  “An active outdoor boy,” the doctor agreed.

  Tuesday, Wednesday and even part of Thursday’s session in court were taken up with the testimony of the third medical expert, the chief health officer at the air force base, Dr. David Hall Brooks. Brooks had the advantage of being at both the autopsy on Thursday, June 11, and at the physical examination of Steven the following night. From the prosecution’s vantage point, the loquacious doctor also had the advantage of being much more willing than the other medical witnesses to offer speculation.

  Brooks began by telling the jurors that during the autopsy, he and the pathologist, Dr. John Penistan, held a jar of Lynne’s stomach contents up to a single light bulb. Nothing could be more important for the prosecution’s theory of the time of death than the stomach contents, and yet there were inexplicable differences between the doctors about what they saw staring at the same container.

  Brooks saw “one piece that looked very much like pineapple”—a fruit that Penistan never mentioned. Brooks was certain “there were two kinds of meat,” one brownish and the other whitish, “quite clearly poultry of some sort.” It was a remarkably perceptive analysis, given that Penistan had testified that Brooks took notes during the autopsy at his dictation and the notes specifically said there was “no obvious meat.” Did Brooks simply write down those three words and not inform the doctor standing next to him that he had indeed spotted obvious signs of two kinds of meat? Naturally, Hays did not pursue the contradiction; sadly, neither did Donnelly.

  Unlike Dr. Addison, Dr. Brooks was eager to hypothesize about the age of the various scratches on Steve’s body. A scab on his upper thigh was “two and a half to four days old,” while vertical scratches on each kneecap were “certainly not more than five days old.” Where Addison would only say that Steve’s genital area was “a little cleaner” than the rest of his body, Brooks insisted Steve’s private parts were scrubbed clean compared to the “filthy dirty” parts of the rest of his body.

  “There was oozing,” he said of the sores on Steve’s penis. “By this time the oozing was stagnant.” A curious choice of words since, by strict dictionary definition, oozing cannot be stagnant. Later, under cross-examination, the doctor appeared to be saying the oozing had stopped. “There was no oozing from them,” he said. “It had got to the stage of being tacky, sticky.”

  “This is the worst lesion of this nature I have ever seen,” Dr. Brooks said dramatically. And he left no doubt as to its origin—forcible sexual intercourse. Not just any kind of rape, but “a very inexpert attempt to penetration,” the air force doctor said, in an expression clearly meant to suggest it was the work of an over-excited teenage boy. Brooks did not explain how an experienced rapist would differ from an amateur or how he could distinguish between the two by examining the damage to the victim’s badly decomposed and swollen body.

  Brooks had talked for almost an hour without the benefit of notes or much prompting. But in courts of law as in the outside world, pride goes before a fall. On Thursday morning, September 24, Frank Donnelly began his cross-examination. It would be one of the defence counsel’s longest grillings of any witness, lasting twice as long as Hays’ easy session with the doctor.

  Donnelly’s first serious challenge to Brooks was over his certainty that Lynne’s hymen “was completely missing.” Even Penistan, the pathologist, was not as categorical, suggesting that extreme decomposition might have made it impossible to see the hymen.

  “Do you agree or do you not that there was a considerable degree of decomposition around the external parts of the vagina?” Donnelly asked.

  “I am not a certified pathologist, sir,” Brooks replied. “There was a degree of decomposition,” was all he would concede.

  Donnelly saved his sharpest barbs for Brooks’s seemingly inexhaustible expertise on sores and scratches. Brooks had dramatically improved the precision of his timing skills over the summer. At the preliminary hearing in July, he had testified the penis sores were two to five days old—anywhere from Sunday to Wednesday, too wide a margin to tie Steven to the rape. But now at trial he had told Hays they were only “sixty to eighty hours” old—a much narrower window of twenty hours that put the origin of the penis sores squarely on the Tuesday Lynne disappeared.

  “When did you come to that conclusion?” Donnelly wanted to know.

  “This is a question of scabbing,” Brooks said, avoiding the query.

  “Would you please listen to my question,” the lawyer rebuked him. “When did you come to that conclusion? Was it yesterday, or a week ago?”

  “After the preliminary hearing,” the doctor said.

  “What did you tell us at the preliminary hearing?”

  “That, I cannot remember,” said the doctor who displayed such a sharp memory for other details.

  “I will try and help you,” Donnelly offered. He read the doctor’s own words back to him and wanted to know why he narrowed his estimate so dramatically—from as much as five days to only sixty hours.

  “I have since then been burnt once, and I have seen how long it takes a lesion to heal under ideal conditions,” the doctor explained. He did not elaborate where he burned himself—presumably not on his penis—or why he thought a burn injury was comparable to the sores he found on Steve’s genitals.

  Donnelly now turned to a phone call the doctor made the day after examining Steve at the guardhouse. The call was made to Dr. A. H. Taylor, the jailhouse physician in Goderich.

  “You phoned … and asked him to examine this boy to see if he was circumcised?”

  “Yes sir,” Brooks admitted, leaving in doubt how thorough his examination of Steve’s genitals could have been if he was not sure of such an elemental fact.

  But Donnelly did not know the worst of it. According to the Huron County Jail medical book entries, Dr. Taylor examined Steven at 1:20 p.m. on June 13. The doctor took his blood pressure and tested his urine. In 1966, legal investigators asked Taylor about his findings. “With special reference to his penis at the time of … examination,” they wrote, “Dr. Taylor stated that he had not observed any injury or anything else out of the ordinary.”

  Taylor’s was a startling observation, considering that just over twelve hours earlier, two other doctors
had found what they considered large, oozing sores. Either the jailhouse doctor was so incompetent that he missed them, or the sores were not that severe and had greatly diminished by the next morning. No one will ever know. Donnelly knew nothing about Taylor’s report, and the jailhouse physician was never called to testify.

  Donnelly wrapped up his grilling of Brooks by asking him about the scratches on Steve’s arms. He pointed out that at the preliminary, Brooks had dismissed them, saying it “would it be as if he had his arms around a tree and slid down.”

  “At the time that is what I said,” the doctor admitted.

  “And you don’t want to change that?”

  “Except that when I tried to do it since then, I have taken skin off and bled,” the doctor said. “I have slid down trees since then, and I haven’t been able to produce anything like this lesion.”

  The chief medical officer at RCAF Station Clinton appeared to have led a dangerous life over the summer, incurring burns that allowed him to test for penis sores and sliding down trees to see how his skin bled.

  The final medical expert to testify for the Crown was Elgin Brown. Brown was a biologist with a bachelor of science from the University of Toronto who began work at Dow Chemical and had joined the attorney general’s laboratory a year earlier. He was also a prosecutor’s worst nightmare: a government expert who ended up being more helpful to the defence.

  Hays handed Brown the underpants the police had removed from Steven in jail. The prosecutor was going to get as much mileage as he could from a pair of underwear Steve wore four days after Lynne’s disappearance—even if his show had more to do with theatre than real evidence. Here at last was the physical proof “of very considerable significance” he had promised jurors on the first day of the trial.

  “Will you hold them up?” he asked, trying for as much drama as possible.

  The laboratory expert complied with the odd request and lifted Exhibit 57 in his hands. Even the judge seemed to find the display a bit tawdry. “All right, put them down,” Ferguson said.